Southee v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Southee v Workers' Compensation Regulator [2021] QIRC 416
PARTIES:	Southee, Sherry (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2019/218
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	8 December 2021
MEMBER:	Dwyer IC
HEARD AT:	On the papers
ORDER:	1. The appeal is dismissed.
CATCHWORDS: LEGISLATION:	WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - multiple failures to adequately comply with directions - failures to attend proceedings - warning given to appellant - failure to fully and adequately comply with a direction - appeal dismissed Industrial Relations (Tribunals) Rules 2011 (Qld) r 45 Workers Compensation and Rehabilitation Act 2003 (Qld) s 552A

Reasons for Decision

Background

Ms Sherry Southee filed an appeal against a decision of the Workers' Compensation Regulator ('the Regulator') on 13 December 2019 ('the appeal'). The appeal was filed out of time however by email sent on 16 December 2019, the Regulator agreed to an extension of time for Ms Southee to lodge her appeal.
Following the filing of the appeal, directions were issued by the Industrial Registry on 16 December 2019 which included directions to make certain disclosure on 28 January 2020.
On 30 March 2020, a conference was held in the Queensland Industrial Relations Commission ('the Commission') pursuant to s 552A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').
The conference was unsuccessful in resolving the appeal, and a further directions order was issued on 1 April 2020 for the filing of a statement of facts and contentions.
On 7 April 2020, Ms Southee requested that the appeal be 'put on hold' for three months due to her mother's advancing terminal cancer and the death of her husband. This request was agreed to by the Regulator and the file was put into abeyance for three months.
On 11 June 2020, Ms Southee further requested an extension of time due to her mother's condition.
On 18 June 2020 and again on 7 July 2020, Ms Southee was requested to advise the Commission once she was in a position to proceed with a further conference of her appeal.
No response was received and Ms Southee was emailed on 13 October 2020 seeking an update. By return email, Ms Southee requested that her appeal be placed into abeyance until after the Christmas period, this request was consented to by the Regulator. Ms Southee was informed that her appeal would be placed into abeyance until 31 January 2021.
On 3 February 2021, Ms Southee requested a further conference be held despite the continuing ill health of her mother. The matter was listed for a conference on 24 May 2021.
On 24 May 2021, there was no attendance by Ms Southee. An attempt made to phone her failed. The Regulator confirmed that Ms Southee had not complied with the further directions order issued on 1 April 2020. The matter was adjourned and listed for a mention on 28 May 2021.
On 28 May 2021, there was again no attendance by Ms Southee at the mention and an attempt to phone her failed. A further mention was listed for 10 June 2021 with a notice that a failure to attend may result in the dismissal of the appeal.
In response to the listing notice, Ms Southee advised that she had just been discharged from hospital, that her mother had recently passed away, and she requested that the matter be listed.
At the mention on 10 June 2021, I advised Ms Southee that I was conscious of the multitude of difficulties she had been dealing but that the progress of her appeal has been affected by many delays. Ms Southee was informed that the accommodation of the delays must be balanced against the need to efficiently conduct matters in the Commission.[1] Ms Southee was informed that any further failures to comply with directions or failures to attend further mentions, hearings or conferences could result in the dismissal of the appeal.[2]
[1] T1-3, LL 5-30.
[2] T1-3, L40.
Following the mention, a further directions order was issued requiring the filing of a statement of facts and contentions. A further s 552A conference was listed for 27 August 2021.
Pursuant to the directions order, Ms Southee filed a statement of facts and contentions on 5 July 2021 and the Regulator filed its statement of facts and contentions on 4 August 2021.
Following correspondence received from both parties, the conference listing was amended to 14 September 2021.
During the s 552A conference on 14 September 2021, it was explained to Ms Southee that the next stage in directions will require the filing of lists of witnesses and outlines of evidence for each witness. A further directions order was issued on 14 September 2021 to this effect requiring Ms Southee to file her list of witnesses and outlines by 12 October 2021. Ms Southee was explicitly warned that further delays arising from personal hardships or health issues would require independent proof ('the first warning').
On 12 October 2021, Ms Southee advised that she recently had bladder surgery and would be unable to comply with directions or attend conferences for a minimum of three months. Consistent with her understanding of the first warning Ms Southee attached a completed "MASS 50 – Continence Aids: Initial and Review Application" form to support her request for a 3 month adjournment. A thorough perusal of the form reveals that it contains no information relevant to explaining the need for a 3 month adjournment.
On 13 October 2021 and email was sent to the parties from my chambers requesting that Ms Southee provide a detailed letter from her doctor confirming:
·her recent bladder surgery; and
·an estimate of when she would be in a position to comply with the further directions order issued on 14 September 2021.
Ms Southee did not reply to this email.
As a consequence of Ms Southee's failure to reply to this request the matter was listed for a mention on 26 November 2021. Ms Southee attended the mention by telephone.
During the mention I reminded Ms Southee about the first warning.[3]
[3] T1-2, LL10-30.
Ms Southee responded that she had been too sick to leave her bed but that her doctor would write the letter required when she is well enough to go back to the doctors as he is aware of her recent surgery. She also noted various difficulties she had been facing recently including various illnesses and the death of her dog.[4]
[4] T1-4, LL5-10.
In the circumstances, I verbally gave Ms Southee explicit directions as follows:[5]
COMMISSIONER: I want you to understand my next direction very, very clearly and I want you to comply with it. You are to provide me by next Friday – that is Friday, the 3rd of December. You are to provide me with the detailed letter that I asked for on the 13th of October. That is a letter from your doctor confirming, first of all, that you’ve recently had bladder surgery and, secondly, providing me with an estimate of how long it will take you to comply with the directions issued on the 14th of September. You are to supply that by next Friday at 4 pm. If I do not get compliance with that direction by next Friday at 4 pm, if – or if I do get compliance and it is unsatisfactory or nonresponsive to the order, I will dismiss your appeal without further notice to you. Are we clear about that?
MS SOUTHEE: Yeah.
COMMISSIONER: All right. This is your absolute last chance, Ms Southee. I’ve given you plenty of warnings. I’ve been extremely patient, as has the Regulator, but this is the end. If you do not comply with that direction, and I will issue that direction to you in writing later today, I’d advise you, if you have difficulty reading documents, to get it printed out and get someone to read it to you. I want you to comply with that direction by next Friday at 4 pm. If you don’t comply or you don’t satisfactorily comply, I won’t be calling you back for another mention. We won’t be having another conference. I will then immediately proceed to dismiss your appeal. So the stakes are very high and this is your last chance. Is that clear?
MS SOUTHEE: Thank you.
[5] T1-4, LL15-40.
Ms Southee was again warned verbally that a failure to comply with my directions would lead to immediate dismissal of her appeal ('the second warning').
Following the mention on 26 November 2021, a further directions order was issued in the following terms:
AFTER the mention in the above matter held on 26 November 2021, IT IS ORDERED:
1. That by 4pm on 3 December 2021, Ms Southee must provide a letter from her doctor confirming:
a. That Ms Southee recently underwent bladder surgery; and
b. An estimate of when Ms Southee will be able to comply with the Further Directions Order (3) issued on 14 September 2021 (attached).

The directions order issued on 26 November 2021 included a written warning that informed Ms Southee that a failure to satisfactorily comply with the direction would lead to immediate dismissal of the appeal.
On 2 December 2021, Ms Southee emailed a Discharge Summary purportedly as evidence of her admission to hospital on 23 September 2021 for a planned medical procedure described as "cystoscopy + botox" ('the discharge certificate').
The discharge certificate reveals that the procedure was day surgery and that Ms Southee was admitted at approximately 8am on 23 September 2021 and discharged at approximately 1pm the same day. The discharge certificate confirms that she returned home on the same day as the surgery and makes no mention of post-operative complications or any incapacity.[6]
[6] As an aside, I note that the discharge certificate describes the surgery as a ‘planned procedure’. While it is unimportant to my findings, I would consider it highly unlikely that this procedure was planned or scheduled after the s 552A conference that took place on 14 September 2021 i.e. 9 days before.
In her email accompanying the discharge certificate Ms Southee again sought to evoke continuing incapacity and hardship currently affecting her but she provided nothing by way of proof to support these claims.
While the discharge certificate will suffice as proof that Ms Southee underwent day surgery on 23 September 2021, it is not in the form expressly requested i.e. in a letter from her doctor. Further, the discharge certificate contains no suggestion of post-operative incapacity that would require an adjournment of 3 months.
More significantly, Ms Southee has entirely failed to comply with the second part of the direction issued on 26 November 2021, namely, a letter from her doctor advising when she would have capacity to comply with the directions issued on 14 September 2021.
Multiple failures to comply with Directions
There are multiple examples set out above of failures by Ms Southee to comply with directions issued by the Commission. There have been failures to comply with the orders made on 16 December 2019, 1 April 2020, 10 June 2021, 14 September 2021 and 26 November 2021.
There is a failure to attend the s 552A conference on the 24 May 2021 and the mention on 28 May 2021. There have been repeated instances of poor communication on the part of Ms Southee.
Following direct and explicitly clear warnings on 14 September 2021 at the s 552A conference, and 24 November 2021 at the mention, and a written warning in the Directions Order issued on 24 November 2021, Ms Southee has again failed to adequately comply with a direction in circumstances where she seeks to (yet again) adjourn the proceedings for a period of 3 months.
Ms Southee has apparently been beset with a long list of personal misfortunes since 2019. Without challenge or complaint from the Regulator, Ms Southee has been indulged repeatedly to allow her to recover from or deal with her stated hardships. Ms Southee has been the beneficiary of significant patience on the part of the Regulator (and this Commission) and yet, on the very first occasion where she was ordered to provide some proof to support her request for more delays of this matter, Ms Southee has failed to do so.
Consequences of failure to comply with Directions
The Commission has a discretion to inter alia dismiss proceedings where a party fails to comply with an order.
Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') provides as follows:
(1)    This rule applies if —
(a)a party to a proceeding receives notice of a directions order made by the court, Commission or registrar stating a time, date and place for hearing or conference for the proceedings; and
(b)the party fails to attend the hearing or conference.
(2)    This rule also applies if —
(a)a party to a proceeding receives a notice of a directions order made by the court, Commission or registrar; and
(b)the party fails to comply with the order.
(3)    The court, commission or registrar may—
(a)dismiss the proceeding; or
(b)make a further directions order; or
(c)make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
(d)make orders under paragraphs (b) and (c).
Consideration
Rule 45(3) of the Rules provides that the court, Commission or registrar may dismiss the proceeding in circumstances where a party fails to attend a hearing or conference or fails to comply with an order. Ms Southee has done all of these things (multiple times) but in particular, she has failed to comply with an order issued on 26 November 2021 where she was explicitly warned of the consequences of such failure.
In all of these circumstances I consider that there are more than sufficient grounds to dismiss the appeal.
Order
Having regard to the provisions of rule 45(3) of the Rules, the multiple previous failures to comply with orders, and the most recent failure to satisfactorily comply with the order issued on 26 November 2021, I make the following order:
1. The appeal be dismissed.

[2021] QIRC 416

8 December 2021